Evidence - MBE, TX

8/2/2019 Evidence - MBE, TX

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MBE is governed by the FRE. Beware of answer choices that give the common law rule.1.

Sources of evidence lawA.

Evidence is relevant if it tends to prove (probativeness) of any fact of consequence to the action (materiality)1.Evidence is competent if it doesn't violate any of the rules that call for exclusion. Ex: hearsay rule.2.

Relevant evidence is generally admissible if it is competent.B.

Direct evidence involves no inferences. It is testimony or real evidence that speaks directly to a material issue.1.

Circumstantial evidence is indirect and relies on inference. It's evidence of a subsidiary or collateral fact from

which the existence of a material issue can be inferred.

2.

Direct versus circumstantial evidenceC.

Upon request, the court must restrict evidence to its proper scope and instruct the jury accordingly.1.

Evidence can be admissible for one purpose but not for another, or to one party but not for another.D.

GENERAL CONSIDERATIONSI.

Evidence is relevant if it tends to prove (probativeness) of any fact of consequence to the action (materiality)1.

Evidence must relate to time, event, or person in controversy. Remember to think about the proximity in time

to the events at issue.

2.

Industry custom can be offered to show adherence or deviation from an industry-wide standard of

care, but it isn't conclusive. The entire industry could still be acting negligently.

(a)

Evidence that a particular business had an established business routine is relevant as tending to show

that a particular event occurred.

(i)

Complicated issues of causation can be established by evidence concerning other times, events, or

people. Ex: damage to other homes caused by the defendant's blasting can be relevant to prove D's

blasting damaged the plaintiff's home.

(ii)

the present claim is likely to be false or(a)

that the plaintiff's condition is attributable in whole/part to the prior injury.(b)

Evidence that party has made previous similar false claims is generally inadmissible as to the invalidity of

the present claim but IS usually relevant to prove that

(iii)

The existence of a dangerous condition,(a)The defendant had knowledge of the dangerous condition, and(b)

The dangerous condition was the cause of the present injury(c)

The absence of this evidence is not usually allowed to go to the absence of negligence or lack of a

defect, but can go to lack of knowledge of the danger.

(d)

Evidence of prior accidents or injuries caused by the same event/condition is admissible to prove(iv)

Evidence of previous similar acts can be introduced to prove someone's present motive/intent when

those elements are relevant. (Ex: history of school segregation admissible to show motive for current

exclusion of minorities)

(v)

Evidence of sales of similar personal/real property that aren't too remote in time can be relevant to

prove value. Prices quoted in mere offers to purchase are NOT admissible, but evidence of unaccepted

offers by a party to buy/sell the property can be used against them as an admission.

(vi)

Look for "instinctively" "automatically" and volitional action.(a)

Habit describes a person's regular response to a specific set of circumstances. In contrast, character

describes someone's disposition in respect to general traits. Unlike character evidence, habit evidence is

relevant to prove the conduct of the person on a particular occasion WAS IN CONFORMITY with the

habit.

(vii)

Exception: Previous similar occurrences might be relevant if they are probative of a material issue and the

probative value outweighs the risk of confusion or unfair prejudice. Examples:

3.

DETERMINING RELEVANCEA.

A trial judge has broad discretion to exclude relevant evidence if it's probative value is substantially

outweighedby the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or

waste of time or money. Unfair surprise IS NOT enough for 403 exclusion.

1.

DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCEB.

To prove ownership or control if controverted (ex: dispute over who owns the stairs you tripped

on, D insuring the stairs suggests D owns them)

(a)

BUT can be admissible:(i)

Liability Insurance. Evidence of insurance against liability is NOT ADMISSIBLE to show negligence or ability to

pay a substantial judgment.

1.

EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONSC.

RELEVANCEII.

EVIDENCE!

Evidence - MBE, TXThursday, July 01, 2010

Evidence - MBE, TX Page 1


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to impeach, or (ex: show bias of a witness by showing they're hired by the defendant's insurance

co.)

(b)

as part of an admission. (ex: "don't worry about it, my insurance will cover it")(c)

To prove ownership or control(a)

To rebut a claim the precaution wasn't feasible (not admissible if they don't argue feasibility)(b)

To prove the opposing party destroyed evidence(c)

BUT can be admissible:(i)

Subsequent Remedial Measures. Evidence of repairs/precautionary measures after injury is NOT ADMISSIBLE

to prove negligence, culpability, defect, need for warning,

2.

Must be intent to make a claim if you volunteer an admission and offer to settle immediately

after the event, usually admissible because there hasnt been enough time for the other party to

indicate an intent to make a claim!

(a)

Claim must be disputed as to liability/amount if you admit liability and the amount of damage

but offer to settle to avoid litigation costs, all of that will come in against you!

(b)

Remember that just because you say something in negotiations doesn't immunize it from coming in

against you in court!

(i)

BUT conduct/statements made during negotiations in a civil dispute with a government

regulatory/investigative/enforcement authority are NOT excluded when offered in a criminal case.

(ii)

Settlement Offers and Withdrawn Guilty Pleas are NOT ADMISSIBLE to prove liability for or invalidity of a

claim that's disputed as to validity or amount. Not even direct admissions during negotiations are admissible.

3.

Offers to Pay Medical Expenses. Payment of or offers to pay the injured party's medical expenses are NOT

ADMISSIBLE BUT unlike statements made during negotiations, admissions of fact accompanying offers to

pay medical expenses ARE admissible.

4.

Character evidence CAN be offered as substantive (rather than impeachment) evidence to serve as

circumstantial evidence of how a person probably acted

1.

Evidence ofspecific acts(i)

Testimony of someone who knows the witness can testify to their opinion of someone's character(ii)

Testimony as to a person's reputation in the community(iii)

Means of Proving Character2.

Can't introduce evidence that you're a generally cautious driver to prove you weren't negligent on

the day in question.

(a)

Can't introduce evidence that the defendant is usually a reckless driver to prove her negligence on

the day in question.

(b)

Examples(i)

In a defamation action, where D is sued for calling P a thief and pleads an affirmative defense that

she spoke the truth, P's character is clearly at issue.

(a)

If an employer is charged with negligently hiring an unstable and violent employee, the character

of the employee is directly at issue.

(b)

EXCEPTION: when character is directly at issue, character evidence is admissible BUT limited to opinion

and character, SPECIFIC ACTS NOT ALLOWED.

(ii)

Character evidence is generally not admissible in civil cases unless character is directly at issue (defamation,

entrapment). Raising a character trait to suggest the person acted in accordance with that character trait is

generally not allowed.

3.

The prosecution cannot initiate evidence of defendant's bad character to show she is more likely to have

committed the crime (might be able to for other reason).

(i)

ANY BAD CONDUCT can be mentioned this way, but limited to the CX - no extrinsic

evidence of bad acts. So can ask about arrests, but if they lie, no recourse.

I.

Remember the difference between CXing a character witness with questions about the

defendant's past arrests (allowed) and impeaching the witness on CX with questions

about the witness's past arrests (NOT allowed).

II.

CXing/impeaching the character witness regarding the basis for his testimony, including

whether he knows/heard of specific instances of the defendant's past bad conduct.

(1)

Calling other qualified witnesses to give opinion/reputation evidence as to bad character.(2)

Once the defendant opens the door by introducing evidence as to defendant's own character, the

prosecution can rebut by CX and EE:

(a)

The DEFENDANT may introduce evidence of HER OWN GOOD CHARACTER to prove innocence through

opinion or reputation testimony - not specific act. And character trait must be relevant.

(ii)

Once the accused opens the door by introducing evidence of the victim's bad character, the

prosecutor can rebut by CX and EE:

(a)

The DEFENDANT in a non-rape criminal case can introduce opinion/reputation evidence of the VICTIM'S

BAD CHARACTER when it's relevant to show the accused's innocence. (violence) ()

(iii)

Character evidence in criminal cases is allowed in limited circumstances:4.

CHARACTER EVIDENCE (a special problem!)D.



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evidence of the victim's good character AND(1)

evidence of the accused's bad character FOR THAT TRAIT ONLY.(2)

(what the defendant knows about the victim's violent reputation/specific acts that awareness can

be proven to show defendant's state of mind of fe arto show defendant acted reasonably

(b)

the victim's sexual behavior is admissible to prove that someone other than the defendant is the

source of physical evidence; and

(a)

admissible by the prosecution for any reason; and are(1)admissible by the defense to prove consent only.(2)

specific instances of sexual behavior between the victim and the accused are(b)

In criminal cases,(i)

Evidence of the victim's sexual behavior is admissible if it's not excluded by any other rule and its

probative value substantially outweighs the danger of harm to the victim/unfair prejudice to

anyone.

(a)

Evidence of the victim's reputation is admissible only if it has been placed in controversy by the

VICTIM.

(b)

In civil cases,(ii)

In any civil/criminal proceeding alleging sexual misconduct, evidence offered to prove the sexual

behavior/disposition of the victim is generally inadmissible.

5.

MotiveM.

IntentI.

Mistake (absence of)M. IdentityI.

Common plan or schemeC.

Five things specific acts ARE able to prove (MIMIC):(i)

Sufficient evidence to support a jury finding that the defendant did the prior act, AND(a)

The probative value must be enough to overcome Rule 403.(b)

To be admissible there must be:(ii)

Evidence of prior sexual assaults or child molestation is admissible where the defendant is accused of

committing one of those acts again. Must disclose to the defendant 15 days before trial or later if good

cause.

(iii)

Specific Acts are inadmissible if offered to establish a criminal disposition or bad character, but IS ADMISSIBLE

to prove five different things:

6.

Judicial notice can be taken at any time whether or not requested! Can be judge's own motion.(i)

Courts take judicial notice ofindisputable facts that are either notorious facts (matters of common

knowledge in the community) or manifest facts (capable of verification by looking at easily accessiblesources of unquestionable accuracy, ex: scientific principles). Courts increasingly take judicial notice of

scientific principles as manifest fact.

(ii)

Facts Appropriate for Judicial Notice1.

If a court doesn't take judicial notice of something on its own accord, a party must formally request that

notice be taken. OK to do this for the first time on appeal.

(i)

A judicially noticed fact is conclusive in a CIVIL case but NOT a CRIMINAL case. In a criminal case, the

jury is instructed that it can but isn't required to accept a judicially noticed fact as conclusive.

(ii)

Procedural Aspects of Judicial Notice2.

The FRE only govern judicial notice of adjudicative facts = those that relate to the particular case.(i)

Do NOT need to be of common knowledge/capable of indisputable verification to be judicially noticed if

it's a legislative fact = those relating to legal reasoning and lawmaking, like the rationale behind spousal

privilege.

(ii)

"Adjudicative" and "Legislative" facts3.

JUDICIAL NOTICE OF A FACT is recognition that a fact is true without formal presentation of evidenceA.

Courts MUST take judicial notice of federal/state law and official regulations of the forum state and the

federal government.

1.

Courts MAY take judicial notice of municipal ordinances and private acts/resolutions of Congress/local state

legislature/laws of foreign countries.

2.

JUDICIAL NOTICE OF LAW - mandatory or permissiveB.

Jury is NOT REQUIRED to conclude fact was established.(i)

Prosecutor's burden of producing on the fact is satisfied.(ii)

IN CRIMINAL CASE1.

The fact judicially noticed is CONCLUSIVELY ESTABLISHED.(i)

IN CIVIL CASE2.

EFFECT OF JUDICIAL NOTICEC.

JUDICIAL NOTICEIII.

Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. It may be direct,A.

REAL EVIDENCEIV.



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circumstantial, original, or prepared (a demonstrative).

Must be relevant1.

Testimony of a witness that she recognizes the object as what someone says it is; or(i)

Evidence that the object has been held in a substantially unbroken chain of possession(ii)

Must be authenticated = identified as what the proponent claims it to be either by:2.

If it's super physically inconvenient/indecent or improper/unduly prejudicial, might outweigh the need

to admit the real evidence.

(i)

If the condition of the object is significant, must be shown to be the substantially same condition.3.

GENERAL CONDITIONS OF ADMISSIBILITYB.

Relevant photos, diagrams, maps, other reproductions are admissible if their value isn't outweighed by

the danger of unfair prejudice.

(i)

Items used entirely for explanatorypurposes are permitted but usually not admitted into evidence - not

given to the jury for deliberation.

(ii)

Reproductions and Explanatory Real Evidence1.

Usually admissible for the purpose of illustrating testimony.(i)

Must be authenticated. Need testimonial evidence that they are faithful reproductions of the object or

thing depicted.

(ii)

Maps, Charts, Models2.

In paternity suits almost all courts allow exhibition of the child to show whether she is of the race of the

putative father!!!

(i)

Courts are divided with respect to the propriety of exhibition for the purpose of proving physical

resemblance to the putative father

(ii)

Exhibition of Child in Paternity Suits3.

Exhibition of injuries in a personal injury or criminal case is generally permitted by the court has

discretion to exclude if unfair prejudice.

(i)

Exhibition of Injuries4.

The trial court has discretion to allow the jury to view places at issue. Think about the need for view and

changes in the condition of the premises.

(i)

Jury View of the Scene5.

The court has discretion to permit experiments and demonstrations in the courtroom. Demonstrations

of bodily injury may not be a llowed where the demonstration would unduly dramatize the injury.

(i)

Demonstrations6.

PARTICULAR TYPES OF REAL PROOFC.

A writing or any secondary evidence of a writing's content will not be received into evidence unless

authenticated by proof that shows the writing is what it's claimed to be.

1.

The proof must be sufficient to support a jury finding of genuineness. Genuineness must be admitted by thepleadings or by stipulation.

2.

Admissions. The party against whom it's offered admitted its authenticity or acted on it as authentic.(i)

Eyewitness testimony. A document can be authenticated by testimony by someone who sees it

executed or hears it acknowledged. The testimony need not be given by a subscribing witness.

(ii)

Remember that a non-expert without personal knowledge of the handwriting can't become

"personally familiar" just for the purpose of testifying.

(a)

Handwriting verifications. The opinion of a non-expert with personal knowledge of the alleged writer's

handwriting is okay, so is expert testimony. Genuineness can also be determined by the trier of fact

through comparison of samples.

(iii)

at least 20 years old,(a)

in a condition free of suspicion as to authenticity, and(b)found in a place where such a writing would likely be kept.(c)

Ancient documents. A document (applies to all writings!) may be authenticated by evidence that it is(iv)

Reply letter doctrine. A writing can be authenticated by evidence that it was written in response to a

communication sent to the claimed author.

(v)

If a photo is taken where no person who could authenticate is present, the photo may be admitted

upon a showing that the camera was properly operating at the relevant time and the photograph

was developed from film obtained from that camera.

(a)

Photographs are admissible generally only if identified by a witness as a portrayal of certain relevant

facts and verified by the witness as a correct representation of those facts. Usually having a witness at

from the scene will be sufficient, don't need to have the photographer.

(vi)

X-Rays and EKGs require a showing that the process used was accurate, the machine was in working

order, and a custodial chain to prove no tampering.

(vii)

How to authenticate documentary evidence:3.

How to authenticate oral statements4.

AUTHENTICATIONA.

DOCUMENTARY EVIDENCEV.



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Voice identification. A voice may be identified by the opinion of anyone who has heard the voice at

any time INCLUDING after litigation has begun for the sole purpose of testifying.

(a)

She recognizes the other party's voice,(1)

The speaker has knowledge of certain facts only a particular person would have,(2)

She called a particular person's number and a voice answered saying they were that person

or that person's residence, or

(3)

She called the business and talked with the person answering the phone about mattersrelevant to the business

(4)

Telephone conversations. Statements made during a telephone conversation may be

authenticated by one of the parties to the call who testifies that

(b)

When a statement is admissible only if said by a particular person (like admission by a party)

authentication as to the identity of the speaker is required.

(i)

Certified copies of public records(a)

Official publications(b)

Newspapers and periodicals(c)

Trade inscriptions(d)

Acknowledged documents (notarized, etc.)(e)

Commercial paper and related documents(f)

Certified business records(g)

Certain writings prove themselves. Extrinsic evidence of authenticity is NOT required for:(i)

Self-Authenticating Documents5.

To prove the terms of a writing, recording, or photograph the original writing must be produced if the

terms of the writing are material. Secondary evidence of the writing (like oral testimony) is admissible only i fthe original is unavailable.

1.

A legally operative or dispositive instrument, or(i)

Ex: Witness can't testify about the content of a written deed unless sufficient reason is given for

not producing the written deed;

(a)

Ex: Witness who only knew the mileage recorded on a car sticker for a certain date can't testify as

to the mileage without establishing a reason for the unavailability of the writing

(b)

The knowledge of a witness concerning a fact results from having read it in the document.(ii)

The rule applies when the writing is:2.

the loss/destruction of the original(a)

the original is in the possession of a third party out of the jurisdiction and is unobtainable(b)

the original is in the possession of an adversary who fails to produce it after due notice(c)

Valid EXCUSES - must prove by a preponderance that3.

Many writings record details of essentially non-written transactions. Oral testimony of these facts

can be given without the original writings recording the event.

(a)

Ex: witness can testify orally that she paid for goods received without showing the receipt; can

testify about birth, marriage, age though certificates exist; someone who heard testimony in

another trial doesn't need to reproduce the transcript; admissions/confessions can be testified to

by whoever heard them, even if they were later reduced to writing.

(b)

The fact to be proved exists independently of the writing.(i)

Can be presented through a summary or chartprovided thatthe original records WOULD be

admissible and they are available to the other side for copy/inspection.

(a)

The original records themselves NEED NOT be placed into evidence(b)

Voluminous records(ii)

Don't need to original records. That would be chaos.(a)

Certified copies of public records(iii)

The writing is collateral or of minor importance to the litigated issue.(a)Collateral documents(iv)

Ex: W testifies "I head D say the telegram he got said xyz" - D's oral admissions out of court are

inadmissible to prove the contents of the telegram.

(a)

A proponent can prove the contents of a writing, recording, or photograph through the testimony,

deposition, or written admission of the party against whom it is offered without accounting for the

original, but the contents cannot be proved by out-of-court oral admissions.

(v)

Don't need the original when4.

Handwritten copies are considered SECONDARY evidence and are only admissible if the

original/exact duplicate is unavailable.

(a)

Writings: include photographs and recordings! Includes film or print from negative of film, computer

printout.

(i)

Original: is the writing itselfOR ANY DUPLICATE.(ii)

Definitions are all totally unintuitive5.

BEST EVIDENCE RULE / ORIGINAL DOCUMENT RULEB.



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Duplicate: = exact copy of an original, like a carbon copy. Duplicates are admissible in federal courts

unless the authenticity of the original is challenged or unfairness would result.

(iii)

If the proponent can't produce the original writing in court, he can offer secondary evidence of its

contents (= handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the non-

production of the original.

(i)

All secondary evidence is the same, no degrees.(ii)

Admissibility of Secondary Evidence of Contents6.

Whether the original ever existed(a)

Whether a writing, recording, photograph produced IS in fact the original; and(b)

Whether the evidence offered correctly reflects the contents of the original(c)

Usually it's for the COURT to make determinations of fact about the admissibility of duplicates, other

copies, oral testimony as to the contents of the original. BUT FRE reserves the following questions of

preliminary fact for the jury:

(i)

Functions of Court and Jury7.

If an agreement is reduced to writing, that writing IS the agreement and constitutes the ONLY EVIDENCE of it.

Prior and contemporaneous negotiations/agreements are merged into the written agreement and are

inadmissible to vary the terms of the writing.

1.

Incomplete or ambiguous contracts(i)

Where a party alleges facts (mistake) entitling her to reformation(ii)

To show the contract is void or voidable(iii)

To show the contract was made subject to a valid condition precedent that has not been satisfied(iv)

The PER does NOT apply to2.

Parol evidence IS ADMISSIBLE to show subsequent modification or discharge of the written contract.3.

PAROL EVIDENCE RULEC.

The capacity to observe(i)

The capacity to recollect(ii)

The capacity to communicate(iii)

The capacity to appreciate the obligation to speak truthfully(iv)

Witnesses must pass tests of basic reliability to establish their competency to give testimony but are generally

presumed competent until it is established otherwise. Witnesses must possess to some degree four basic

testimonial attributes:

1.

Witness must have personal knowledge of the matter to which she's testifying AND(i)

The witness must declare she will testify truthfully (oath)(ii)

If a witness requires an interpreter, the interpreter must be qualified and oathed to make a true

translation.

(iii)

Federal Rules of Competency2.

No more mental or moral qualifications, no more disqualifications for lack of religious belief, conviction

of a crime, and interest in the lawsuit.

(i)

The competency of an infant depends on the capacity and intelligence of the individual as determined

by the tria l judge

(ii)

An insane person can testify provided he understands the obligation to speak truthfully AND has the

capacityto testify accurately.

(iii)

In same case they're sitting(1)

In other cases as to statements made in deliberations, or effect anything had on deliberation(2)

Jurors can't testify(a)

Presiding judge and jurors can't testify as a witness in the trial in which they're sitting.(iv)

Oath or affirmation required - acknowledge you must tell the truth and consequences if you don't.(v)

Modern Modifications of the Common Law Disqualifications3.

No Dead Man Acts in the FRE but a state Act will apply in federal cases where state law provides the

rules of decision according to the Erie doctrine.

(i)

Typical state Dead Man Act: party/person in civil action who is interestedis incompetent to testify to apersonal transaction/communication with a dead person when that testimony is offered against the

representative/successors-in-interest of the deceased.

4.

COMPETENCY OF WITNESSESA.

To elicitpreliminary or introductoryinformation(i)

On cross-examination(ii)

When the witness needs aid to respond because of loss of memory, immaturity, physical/mental

weakness

(iii)

When the witness is hostile(iv)

Leading Questions are those which suggest the desired answered and are generally improper on direct but

ARE allowed:

1.

FORM OF EXAMINATIONB.

TESTIMONIAL EVIDENCEVI.



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Questions that are misleading = can't be answered without making an unintended assumption(i)

Compound questions = requiring a single answer to more than one question(ii)

Questions that are argumentative, conclusory, cumulative, unduly harassing or embarrassing(iii)

Questions that call for a narrative answer or speculation(iv)

Questions that assume facts not in evidence(v)

Improper Questions2.

Answers that lack foundation = the witness has no personal knowledge to answer the question(i)

Answers that are non-responsive = that don't answer the question asked.(ii)

Improper Answers3.

Can use ANYTHING to refresh witness's PRESENT recollection.(a)

Can't read from it while you actually testify because the writing is NOT AUTHENTICATED and NOT

IN EVIDENCE.

(b)

If you use a DOCUMENT, must provide for other side, other side can intro to evidence if it wants.(c)

Present recollection revived is used to "refresh recollection".(i)

The witness at one time had personal knowledge of the facts in the writing(a)

The writing was made by the witness or under her direction, or was adopted by the witness(b)

The writing was timely made when the matter was still fresh in her mind(c)

The writing is accurate; AND(d)

The witness has insufficient recollection to testify fully without it.(e)

Past recollection recorded. When a witness says she has insufficient recollection of an event to enable

her to testify fully and accurately even AFTER she has consulted a writing given to her on the stand, the

writing itselfis read into evidence only i f the proper foundation is laid, which must include proof that:

(ii)

Whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitledto have the writing produced at trial, to CX the witness on it, and to introduce the portions relating to

the witness's testimony into evidence.

(iii)

Use of Memoranda by Witness4.

Rationally based on the witness's perception(a)

Helpful to a clear understanding of her testimony/helpful to the determination of a fact in issue;

AND

(b)

Is NOT based on scientific, technological, or other specialized knowledge.(c)

Only admissible when it is(i)

The general appearance or condition of a person(a)

The state of emotion of a person(b)

Matters involving sense recognition(c)

Voice/handwriting identification(d)Speed of a moving object(e)

Value of the witness's own services(f)

Rational or irrational nature of another's conduct; and(g)

The intoxication of another.(h)

Generally admissible with respect to(ii)

Whether someone was acting as an agent of another(a)

Whether an agreement was made(b)

Generally NOT ADMISSIBLE with regard to (jury questions!)(iii)

Opinion Testimony by Lay Witnesses1.

The subject matter is one where scientific/technical/specialized knowledge would assist the trier of

fact (and is relevant and reliable)

(a)

The witness is qualified as an expert (possess special knowledge, skill, experience, education, ot

training) (SKEET skeet skeet)

(b)

The expert possess reasonable probability regarding his opinion.(c)

Only admissible when(i)

Expert's personal knowledge (like as a treating physician)(a)

Other evidence in the trial record (other testimony, exhibits) that are made known to the expert in

a hypothetical question (has to be in evidence that's in the record by end of trial)

(b)

Facts outside the record if they're of a type reasonably relied upon by experts in that particular

fieldwhen forming opinions (so the facts themselves can be INADMISSIBLE)

(c)

Three permissible data sources(ii)

TRAP - can methods be TESTED, RATE of error, ACCEPTANCE by experts in the same discipline,(a)

Federal judge's gatekeeper role(iii)

An expert may render an opinion as to the ultimate issue in the case BUT in a criminal case where the

defendant's mental state is an element of the crime/defense, the FRE prohibits an expert from giving

an opinion as to whether the accused had that mental state.

(iv)

Opinion Testimony by Expert Witnesses2.

OPINION TESTIMONYC.



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An expert must be on the stand when an excerpt is read from a treatise; and(1)

The relevant portion is read into evidence but is not received as an exhibit.(2)

These texts/treatises can be used to impeach experts and also as substantive evidence subject to

the following limitations

(a)

An expert may be CX-ed concerning statements contained in any publication that is established as

reliable authority by either the their testimony or another expert testimony or by judicial notice.

(v)

CX of adverse witnesses is a matter of right in every trial where there's a disputed issue of fact, but the scope

of CX is frequently a matter of judicial discretion.

1.

Scope of direct examination, including all reasonable inferences that may be drawn from it AND(a)

Testing the credibility of the witness(b)

CX is generally limited to(i)

The CX-er is generally bound by the answers of the witness to questions concerning collateral matters.

Generally CANNOT REFUTE the response with extrinsic evidence but certain recognized matters of

impeachment - bias, interest, convictions - may be developed by extrinsic evidence because they're

sufficiently important. Up to the judge.

(ii)

Scope of CX2.

CROSS-EXAMINATIOND.

Generally a party may not bolster or accredit the testimony of her witness until they've been

impeached, except you CAN prove the witness made a timely complaint or a prior statement of

identification.

(i)

THESE ARE COMMON WRONG ANSWERS: notion that you can't impeach your own witness unlessthey're adverse, hostile, required by law, or surprise. Can impeach ANY witness!!!!(a)

A witness may be impeached by any party, including the party calling her.(ii)

Impeachment = casting doubt on the veracity of the witness1.

Can impeach in CX or extrinsic evidence = putting other witnesses on the stand who will introduce facts

discrediting the testimony.

(i)

Exception: prior inconsistent statements by hearsay declarants can be used despite the lack

of foundation; also FRE says can dispense with foundation requirements when justice would

require, like the witness is unavailable

(1)

Usually prior inconsistent statements are hearsay and only admissible for impeachment,

but if the statement was made under oath, can come in as substantive evidence of the

facts in it.

(2)

Prior inconsistent statements. CX or EE - generally foundation required. Witness must be given

some opportunity to explain or deny the prior inconsistent statement.

(a)

Before a witness can be impeached by EE of bias/interest, he must FIRST be ASKED about the

facts that show bias or interest on CX.

(1)

Watch for facts indicating that the foundation requirement for EE of bias/interest have been

fulfilled because relevant evidence that is otherwise inadmissible (past arrests, liability

insurance) CAN come in for impeachment purposes if the foundation's been laid.

(2)

Bias or interest. CX or EE - with foundation. Evidence that a witness is biased or has an interest in

the outcome of a suit tends to show a witness has a motive to lie.

(b)

A prior conviction can be shown either in CX or by introducing a record of the judgment; no

foundation is necessary!

(1)

Any felony or misdemeanor requiring an act of dishonesty or false statements. Courthas no discretion to bar impeachment by these crimes.

I.

If it's to impeach a criminal defendant court can exclude if the prosecutor

hasn't shown the conviction's probative value outweighs its prejudicial effect

A.

For all other witnesses the court determines that the conviction's probative

value is substantially outweighed by its prejudicial effect.

B.

For F/M not involving dishonesty, the court has discretion to exclude IF:II.

Types of crime(2)

If more than 10 years have passed since whichever is greater of (date of conviction or

date of release from confinement), generally too remote to be inadmissible.

I.

A constitutionally-defective conviction is invalid for all purposes, including

impeachment.

II.

Remote, Juvenile, and Constitutionally-Defective Convictions are NOT admissible.(3)

Effect of Pardon(4)

Conviction of crime. CX or EE - no foundation required. Can impeach by proof of CONVICTION (not

arrest or indictment) for certain crimes. Pending appeal has no effect.

(c)

Certain grounds for impeachment require that a foundation be laid during CX before EE can be

introduced:

(ii)

Impeachment Methods - CX and Extrinsic Evidence2.

CREDIBILITY (impeachment)E.



9/17

The pardon is BASED ON INNOCENCE, ORA.

The person pardoned hasn't been convicted of a subsequent felonyB.

A conviction may not be used to impeach a witness if the witness has been pardoned

AND:

I.

Extrinsic evidence of prior BAD ACTS to prove misconduct is NOT permitted. A specific act of

misconduct offered to attack truthfulness can be elicited ONLY on CX.

(1)

Remember that an ARREST ALONE is NOT A BAD ACT. So it's okay to ask if I ever embezzled

money from my employer, but not okay to ask if I was ever arrested for embezzlement.

(2)

Specific instances of misconduct (bad acts). CX ONLY. Subject to the discretion of the trial judge, a

witness can be CX-ed about a specific bad act only if the act is probative of TRUTHFULNESS.

Question must be asked in good faith.

(d)

Opinion or reputation evidence of truthfulness. EE - no foundation. Can impeach by showing a

witness has a reputation for untruthfulness. Can include evidence of reputation in business circles

as well as in the community in which the witness resides. FRE allows a witness to give an opinion as

to truthfulness.

(e)

Sensory deficiencies. CX or EE - no foundation. Show that the witness's faculties were so impaired

that it's doubtful that he could have perceived those facts. Can also be impeached by showing the

witness had no knowledge of the facts to which he testified.

(f)

No Impeachment on Collateral Matters! If a witness says something that's not directly relevant to the issue,

can't impeach by EE or with prior inconsistent statements!

3.

Don't need to give the declarant the opportunity to explain/deny a prior inconsistent statement!(i)

The party the HS is offered against can call with declarant and CX them!(ii)

Impeachment of Hearsay Declarant. Can attack/support hearsay evidence that gets in as if the declarant had

testified as a witness.

4.

Explaining/clarifying facts on redirect.(a)

When veracity has been attack, can call other witnesses to testify as to truthfulness.(b)

Normally cannot rehabilitate by showing a prior consistentstatement BUT if the witness's

testimony has been attacked by an express OR implied charge that the witness is lying or

exaggerating because of some motive, a prior consistent statement IS admissible to rebut AND

the prior statement is SUBSTANTIVE evidence of the truth of its contents whether it was made

under oath or not.

(c)

A witness who has been impeached can be rehabilitated by:(i)

Rehabilitation5.

Not necessary for a party to "except" from a trial ruling in order to preserve the issue for appeal in most

states.

(i)

objections to a form of a question or to a testimonial privilege should be made WHEN THE

QUESTION IS ASKED OR ELSE IT IS WAIVED.

(1)

objections based on the substance of a question or answermay be postponed until the

deposition is offered into evidence at trial.

(2)

At a deposition:(a)

Failure to object is deemed as a waiver of any ground for objection. So if you don't object,

OTHERWISE INADMISSIBLE evidence WILL BE ADMITTED!!!

(b)

Should make objections after the question but before an answer if the answer calls for inadmissibleinformation, otherwise as soon as an answer calls for inadmissible info, move to strike.

(ii)

A sustained general objection (one that doesn't state the grounds for objection) will be upheld on

appeal if there's any groundfor the objection.

(a)

An overruled general objection will be upheld on appeal unless the evidence wasn't admissible

under any circumstance for any purpose!!

(b)

A sustained specific objection (states the ground for objection) will be upheld on appeal only if the

ground states was correctOR if the evidence excluded wasn't competent and couldn't be made

competent.

(c)

Specificity of objections(iii)

Opening the door: If you introduce evidence on a particular subject, you assert its relevance and cannot

complain if the other party offers evidence on the same subject.

(iv)

Context. If PART of a conversation, act, or writing is introduced into evidence, the other party can

require the proponent to introduce ANY other part that ought in fairness be considered.

(v)

The examining counselcan move to strike a non-responsive answer but the opposing counsel can NOT.(vi)

Objections1.

An offer of proof may be made that discloses the nature, purpose, and admissibility of rejected evidence in

order to preserve the evidence for review on appeal. Can be made by witness testimony, lawyer's narration,

or marked tangible evidence.

2.

OBJECTIONS, EXCEPTIONS, OFFERS OF PROOFF.

TESTIMONIAL PRIVILEGEG.



10/17

Testimonial privileges permit one to refuse to disclose and prohibit others from disclosing certain confidential

information in judicial proceedings.

1.

attorney-client privilege,(i)

spousal communication privilege, and(ii)

psychotherapist privilege.(iii)

In DIVERSITY cases, state privilege law applies!(iv)

FRE has no specific privilege provisions. Privilege in federal courts is governed by common law principles.

Federal courts recognize only

2.

Privilege is personal to the holder and can only be asserted BY the holder. Sometimes the person with

whom the confidence was shared can assert the privilege on the holder's behalf.

(i)

To be privileged, a communication must be shown or presumed to have been made in confidence.

Absent negligence, even an eavesdropper is barred from testifying.

(ii)

The counsel for the parties and the judge may not comment on a claim of privilege.(iii)

Failure to claim the privilege(a)

Voluntary disclosure of the privileged matter by the privilege holder (not eavesdropping!)(b)

Contractual provision waiving in advance the right to claim a privilege(c)

Privileged is waived by:(iv)

Generally,3.

Statements made by corporate officials/employees to an attorney are protected if the employees

were authorized by the corporation to make such statements.

(a)

Communication between an attorney and a client made during professional consultation. Client must be

seeking the professional services of the attorney at the time of the communication. Disclosures made

before the attorney accepts/declines the case ARE covered by the privilege.

(i)

BUT representatives of the attorney or client can be present without destroying the privilege.(a)

Ex: communication between a client and a doctor during an examination made at the

attorney's request. Doctor/patient privilege might not apply because no treatment may be

contemplated BUT attorney/client privilege will apply as long as the doctor isn't called as an

expert.

(1)

BUT communications made to 3rd party agents (secretaries, messengers, accountants) ARE

confidential and covered by the privilege if they were necessary to transmit the information

between the attorney and client.

(b)

To be protected, the communication must be confidential - not intended to be disclosed to third

parties, otherwise communications made in the known presence and hearing of a stranger are NOT

privileged.

(ii)

No privilege where the attorney acts for both parties to a transaction but the privilege can be claimed

in a suit between either or both of the two parties vs. a third person.

(iii)

The privilege applies indefinitely, even after the client's death.(iv)

No privileges if the attorney's services were sought to aid in the planning/commission of

something the client should have known was a crime or fraud.

(a)

When communication is relevant to an issue betweenparties claiming through the same dead

client

(b)

For communication relevant to an issue of breach of duty in a dispute between the attorney and

the client.

(c)

Three big exceptions to attorney-client privilege:(v)

Attorney work product - Although documents prepared by an attorney for his own use in a case are

NOT protected by PRIVILEGE, they are not subject to discovery except in cases of necessity.

(vi)

The client is the holder of the privilege and the client alone can waive it. The attorney's authority

to claim the privilege on behalf of the client is presumed in the absence of contrary evidence.

(a)

The holder's failure to claim the privilege or failure to object when the privileged testimony isoffered WAIVES the privilege.

(b)

The waiver was intentional,(1)

Both the disclosed and undisclosed material concern the same subject matter, and(2)

Fairness dictates all the material should be considered together to avoid a misleading

presentation of evidence

(3)

Voluntary disclosure of privileged material waives the privilege or work product protection only

with respect to the disclosed material. The waiver doesn't extend to undisclosedprivileged

material unless:

(c)

If the disclosure was inadvertentand the holder took reasonable steps to prevent disclosure and

rectifythe error, no waiver.

(d)

Waiver(vii)

Attorney-Client Privilege4.

SCOTUS recognizes federal privilege for communications between a psychiatrist/psychologist/social(i)

Psychotherapist/Social Worker-Client Privilege5.



11/17

worker and their client.

In addition to federal courts, almost all states recognize a privilege for this.(ii)

Works basically the same as attorney/client privilege.(iii)

If invoked, a married person whose spouse is a CRIMINAL DEFENDANT cannot be called as a

witness by the prosecution.

(1)

A married person cannot be compelled to testifyagainst his spouse in any CRIMINAL

proceeding regardless whether the spouse is a defendant. Basically covers all testimony

where one spouse speaks against another. But can testify if you want to!!

(2)

Must be a valid marriage for the privilege to apply.(3)

Privilege lasts only during the marriage. Does NOT survive the marriage.(4)

Spousal Immunity (criminal only)(a)

In any civil or criminal case, confidential communications between a husband and wife during

a valid marriage are privileged but the marital relationship must exist WHEN the

communication WAS MADE.

(1)

Both spouses have to agree in order to break the confidence.(2)

So survives the end of a marriage - anything within the marriage is protected unless the

privilege is broken.

I.

Even if the marriage was annulled, there's privilege so long as they thought they were

married, even though annulment legally makes the marriage disappear.

II.

Divorce doesn't terminate the privilege but communications after divorce are not privileged.(3)

The communication must be made in reliance on the intimacy of the marital relationship(which means must be confidential)(4)

Privilege for confidential marital communication (criminal and civil)(b)

Two types(i)

actions between the spouses,(a)

in cases involving crimes againsta testifying spouse (where spouse is the victim)(b)

In cases involving crimes against either spouse's children(c)

Neither type of spousal privilege applies in(ii)

Spousal Privilege6.

A professional relationship exists(a)

The info is acquired while attending the patient in the course of treatment (not just for trial)(b)

The information is necessary for treatment. Non-medical information is NOT privileged.(c)

The physician-patient privilege belongs to the PATIENT and he can decide to claim/waive it. Confidential

communications between a patient and his doctor are privilege so long as

(i)

The patient puts his physical condition at issue(a)

The physician's assistance was sought to aid commission of a crime or tort(b)The communication is relevant to a breach of duty issue in a dispute between the physician and the

patient

(c)

The patient contracts to waive the privilege (like in a life insurance policy)(d)

It is a federal case applying federal privilege law - no doctor/patient privilege!!!(e)

The privilege does not apply when(ii)

In some states, doctor/patient privilege applies in both civil/criminal, some just civil, some just

misdemeanors, some only not in homicide cases.

(iii)

Physician-Patient Privilege7.

5th A says you can't be compelled to testify against yourself.(i)

Any witness compelled to appear in a civil/criminal proceeding can refuse to give an answer that ties the

witness to the commission of a crime.

(ii)

Privilege Against Self-Incrimination8.

For statements made to a member of the clergy / accountant. Like attorney/client.(i)

Clergy or Accountant Privilege9.

No constitutional right for a professional journalist to protect his source of information. Any privilege

here must come from a state statute.

(i)Professional Journalist Privilege10.

General privilege that attaches to certain communications made by or to public officials. Official

information is defined as info not open to the public, relating to internal affairs, can apply to low-level

communications made by or to officials, like a judge's communications to his law clerk.

(i)

Privilege can be claimed by a government representative, including prosecutor.(a)

No privilege exists if the identity of the informer/his interest in the subject matter of his

communication ahs been voluntarily disclosed by the holder of the privilege or if the informer

appears as a witness in the case.

(b)

A governmental entity generally has a privilege to refuse to disclose the identity of a person who has

furnished to a LEO information purporting to reveal the commission of a crime (tips)

(ii)

Governmental Privileges11.



12/17

If the government chooses not to disclose and informer's identity and there's a reasonable probability

that the informer could provide testimony necessary to a fair determination of guilt/innocence, the

accused/judge can motion to dismiss the proceedings!!

(iii)

If a party asks/on her own motion, the trial judge will order a witness excluded from the courtroom so they

can't hear the testimony of other witnesses.

1.

A party or a designated officer or employee of a party(i)

A person whosepresence is essentialto the presentation of a part's case, or(ii)

A person who is statutorily authorized to be present(iii)

FRE prohibits the exclusion of:2.

EXCLUSION AND SEQUESTRATION OF WITNESSESH.

statement = an oral or written assertion or non-verbal conduct intended as an assertion (like a head nod)1.

Verbal acts or legally operative facts (word of contract, defamatory words, bribery, cancellation,

permission)

(a)

Offered to show their effect on the hearer/reader (ex: to prove notice in a negligence case)(b)

Don't confuse with statements that reflect directly on state of mind in order to establishintent this is hearsay but comes in under an exception.(1)

Offered as circumstantial evidence of the declarant's state of mind (evidence of insanity,

knowledge).

(c)

These out-of-court statements are NOT HEARSAY:(i)

Ask if we care if the declarant's telling the truth when trying to figure out if something's hearsay.(ii)

offered to prove the truth of the matter = if an out-of-court statement is introduced for any purpose other

than to prove the truth of the matter asserted, there's no need to cross-examine the declarant, so the

statement IS NOT HEARSAY.

2.

Non-human declarants no such thing as animal or machine hearsay, the declarant must be a person.3.

FRE: hearsay = a statement, other than one made by the declarant while testifying at the trial/hearing, offered in

evidence to prove the truth of the matter asserted.

A.

If not oath, it is STILL HEARSAY, can ONLY be used to IMPEACH(1)

IF given orally and UNDER OATH at a prior proceeding CAN BE USED AS SUBSTANTIVE

EVIDENCE as well as to impeach! Includes depositions.

(2)

It's INCONSISTENT with the declarant's in-court testimony(a)

It IS CONSISTENT with the declarant's in-court testimony and is OFFERED TO REBUT a charge that

the witness is LYING/EXAGGERATING because of some motive and the prior consistent statement

was made before the motive to lie emerged.

(b)

It's an IDENTIFICATION of a person made after perceiving them (doesn't have to be visualperception)

(c)

FRE says prior statements by a witness ARE NOT hearsay if(i)

Witness's Prior Statements1.

To be an admission, doesn't have to have been against the declarant's interest when made and can

be in the form of an opinion.

(a)

The admission can be predicated on hearsay itself, personal knowledge is not required.(b)

Admission = statement or act that amounts to prior acknowledgement by one of the parties of one of

the relevant facts. Admissions by a party opponent are NOT HEARSAY under the FRE.

(i)

formal judicial admissions (pleadings, stipulations, etc) are conclusive.(1)

A formal judicial admission that is withdrawn in one proceeding can become an

informal admission (statements in original answer are admissible though superseded byamendment).

I.

But a withdrawn guilty plea is NOT admissible against a defendant in any proceeding.II.

Informal judicial admissions (made under testimony) can be explained(2)

A formal judicial admission in one proceeding can become an extrajudicial/evidentiary

admission in another proceeding (like a plea of guilty in traffic violation civil case on

same facts)

I.

Extrajudicial admissions (evidentiary) are not conclusive and can be explained(3)

Judicial and extrajudicial admissions:(a)

A party can make an admission by expressly or impliedly adopting or acquiescing in the

statement of another

(1)

The party heard and understoodthe statementI.

The party was physically/mentally capable of denying; andII.

Silence maybe considered an implied admission. Requires:(2)

Adoptive admissions(b)

Interesting types of admissions:(ii)

Admissions by Party-Opponent2.

"NON-HEARSAY" STATEMENTSB.

THE HEARSAY RULEVII.



13/17

A reasonable person would have denied the accusation.III.

BUT silence in the face of POLICE accusations in a CRIMINAL case will almost never be

considered an admission of a crime.

IV.

Admissions of a party can't come in against co-partiesjust because they happen to be joined

as parties.

(1)

The statements of a person authorized to speak on a party's behalf (like a press agent) can be

admitted against the party as an admission

(2)

The statements of a party's agent within the scope of her agency made while the agency

relationship exists are NOT HEARSAY and so are admissible against the principal.

(3)

If a partnership is shown to exist, an admission of a partner about matters within the scopeof the partnership business is binding on co-partners .

(4)

a conspiratorI.

to a third partyII.

in furtherance of a conspiracy to commit a crime/civil wrongIII.

at a time when the declarant was participating in the conspiracy.IV.

Admissions ofco-conspirators are admissible when:(5)

The FRE doesn't consider these admissions but they might come in under a hearsay

exception

I.

In most STATE COURTS, admissions ofjoint tenants are admissible against the other and

admissions of a former owner of real property made while she had tit le are admissible

against those claiming under her (grantees, heirs, etc.)

(6)

In making this determination, the court must consider the contents but the statement

alone is not sufficient to establish the required relationship.

I.

Before admitting a hearsay statement as a vicarious admission, the court must make a

preliminary determination of the declarant's relationship with the party against whom thestatement is offered.

(7)

Vicarious admissions(c)

A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition IS

admissible. The comment should be made concurrently with the sense impression.

(i)

if the state of mind is directly in issue(a)

Declarations of intent offered to show subsequent acts of the defendant - admitted as circumstantial

evidence tending to show the intent was carried out

(b)

Statements ofmemory or beliefis usually not admissible to prove the truth of the fact

remembered/believed except as to certain facts about the declarant's will.

(c)

Admissible when(ii)

Present State of Mind1.

The declaration must concern the immediate facts of the startling occurrence(a)

An out-of-court statement relating to a startling event made while under excitement from the event

(before the declarant had time to reflect on it) is admissible.

(i)

The time element is the most important factor.(ii)

Excited Utterances2.

Comments made concurrently with the sense impression of an event that is not necessarily exciting can

be admissible because little time for calculated misstatements and the contemporaneous nature of the

statement makes it reliable.

(i)

Present Sense Impressions3.

Statements about present bodily condition are admissible. Even if not made to a physician.(i)

CONTRARY to the majority view, declarations of past physical condition made to doctor who is

exclusively employed to testify ARE ADMISSIBLE under the FRE.

(a)

Statements about past bodily condition only admissible if to assist in the diagnosis or treatment or the

condition. Can be made to any medical personnel to help diagnose or treat. Even declarations about the

cause or source of the condition are admissible IF PERTINENT TO DIAGNOSIS/TREATMENT.

(ii)

Declarations of Physical Condition4.

Business = every association, profession, occupation, calling of any kind, for profit OR NOT(a)

Entry must be in the regular course of business = must be customary to make the type of entry

involved. Self-serving accident reports used primarily for litigation are usually inadmissible!

(b)

Entry must be made near the time of the event/transaction(c)

While police reports containing the statements of witnesses might qualify as business(1)

Author must have had personal knowledge or must be within the knowledge of someone with a

DUTY TO TRANSMIT the matters TO the entrant.

(d)

Any writing or record made as a memorandum of any act/transaction IS ADMISSIBLE AS PROOF of that

act/transaction. FRE + modern rules:

(i)

Business Records5.

HEARSAY EXCEPTIONS - declarant's availability immaterialC.



14/17

records under some circumstances, generally witnesses or parties are NOT under a business

duty to convey informa tion to the police!!!! So a report containing their statements CANNOT

QUALIFY AS A BUSINESS RECORD but could be admissible under some other exception

Testifies that the record is a business record OR(1)

Certifies in writing that the record is a business record(2)

Authenticity must be established by a custodian of the record who(e)

Business records can be used to prove the non-occurrence or non-existence of a matter if it was the

regular practice of the business to record all such matters.

(ii)

If the witness's memory can't be revived, a party can introduce a memorandum the witness herself

made at/near the time of the event.

(i)

Writing itself isn't admissible, but it's read to the jury.(ii)

Past Recollection Recorded6.

The activities of the office/agency(1)

Matters observed pursuant to a duty imposed by law (EXCLUDING police observations in a

criminal case) OR

(2)

In civil cases and criminal proceedings against the government, factual findings (including

opinions and conclusions) resulting from an investigation made pursuant to authority granted

by law, unless circumstances (like the info source) indicate lack of trustworthiness)

(3)

Records, reports, statements, or data compilations in any form, of a public office/agency are

admissible to the extent that they set forth

(a)

Any hearsay within these reports will be excised unless it falls into another exception. Officer's

conclusions and opinions are admissible though.

(b)

The writing made by and within scope of duty of the public employee(1)

Entry near the time of the event(2)

Circumstances indicate trustworthiness(3)

To be admissible, require(c)

Public records and reports(i)

Birth, death, marriage records admissible if the report was made to a public office and complied

with all requirements

(a)

Records of vital statistics(ii)

Evidence in the form of a certification/testimony from the custodian of public records that she has

diligently searched and failed to find a record IS ADMISSIBLE to prove that the matter was not

recorded AND, INFERENTIALLY that the matter did not occur.

(a)

Statements of ABSENCE of public record(iii)

A certified copy of a judgment is always admissible proof that the judgment's been entered BUT(a)

Admissible for thispurpose only against the accused. Against people other than the accused,

can only use prior felony convictions for impeachment.

(1)

Prior felony convictions are admissible in criminal/civil action to prove any fact that was essentialto the prior judgment. FRE is contrary to the majority rule in state courts here. Felony = crimes

punishable of greater than one year or death.

(b)

Prior misdemeanor convictions are NOT admissible. Anything punishable by 1 yr or less!(c)

Prior criminal acquittals are NOT admissible.(d)

Prior civil judgments are clearly inadmissible in a subsequent criminal proceeding because of the

different standards of proof, and generally inadmissible in a subsequent civil proceeding.

(e)

Judgments(iv)

Official Records and Other Official Writings7.

FRE: statements in any authenticated document 20+ yrs old ARE admissible(i)

Statements in any document affecting an interest in property are admissible regardless of the age of

the document

(ii)

Ancient Documents and Documents Affecting Property Interests8.

Called to the attention of/relied on by an expert witness AND(a)

Established as reliable authority by the testimony of that witness, other expert testimony, or

judicial notice

(b)

Treatises are admissible as substantive proof under the FRE if:(i)Learned Treatises9.

Character(a)

Personal/family history(b)

Land boundaries(c)

A community's general history(d)

Reputation evidence is admissible under a bunch of hearsay exceptions as evidence of:(i)

Reputation10.

Statements of fact concerning personal/family history in family Bibles, jewelry engraving, genealogies,(i)

Family Records20.



15/17

tombstone engravings, etc. are admissible.

Market reports and other published compilations are admissible if generally used and relied on by the

public or people in that particular occupation.

(i)

Market Reports21.

Exempt from testifying because ofprivilege(i)

Refuses to testify despite a court order(ii)

Testifies to lack of memory on the subject matter of the statement(iii)

Is unable to testify due to physical or mental illness or death; or(iv)

Is absent (beyond the reach of the court's subpoena) and the proponent is unable to procure hisattendance by reasonable means.

(v)

Five exceptions are contingent on unavailability = the declarant is1.

The testimony was given under oath;(a)

The former action involved the same subject matter (the cause of action doesn't have to be

identical);

(b)

The party that statement's offered against (or a party's predecessor-in-interest if civil) was a party

in the former action;

(c)

The party the statement's offered against had an opportunity to develop the declarant's

testimony at the prior proceeding (by direct, CX, or redirect examination)

(d)

The prior testimony of a now-unavailable witness, given at a hearing/deposition, is admissible only if(i)

Grand jury proceedings don't allow for CX so grand jury testimony can't come in under this exception

BUT remember if there was aprior inconsistent statementgiven under oath at a grand jury hearing by

the witness currently testifying, it can still come in both as impeachment AND substantive evidence.

(ii)

Former Testimony2.

The declarant must have had personal knowledge of the facts and must have been aware that the

statement was against her interest when she made it.

(a)

Declarant must have had no motive to misrepresentwhen she made the statement.(b)

If the statement of a now-unavailable witness was made against that person's pecuniary, proprietary, or

penal interest WHEN MADE, that statement as well as collateral facts within that statement ARE

ADMISSIBLE under this exception.

(i)

States that don't allow statements against penal interest aren't allowed to exclude the confession

of a third party where to do so would deprive the accused of a fair trial.

(a)

Modern trend + FRE: If a criminal defendant wants to admit someone else's confession to committing

the crime, need additional evidence corroborating the trustworthiness of the statement.

(ii)

The exception only covers the against-interest statement, not the complete declaration.(iii)

Statements Against Interest.3.

The declarant believed her death was imminent (but she need not actually die); and(a)

The statement concerned the cause or circumstances of what she believed to be the impending

death.

(b)

In CIVIL ACTIONS and CRIMINAL HOMICIDE PROSECUTIONS, a statement made by a now-unavailabledeclarant is admissible IF

(i)

The traditional rule limited this to situations where the witness actually died and only for criminal

homicide prosecutions, but the FRE rejected this.

(ii)

Dying Declarations - Statements Under Belief of Impending Death4.

The declarant is a member of the family in question or intimately associated with it AND(a)

The statements are based on the declarant's personal knowledge or knowledge of family

reputation

(b)

Statements by now-unavailable declarant concerning births, marriages, divorces, relationships,

genealogical status, etc. are admissible provided that

(i)

Statements of Personal or Family History5.

A statement of a now-unavailable witness is admissible when it's offered against the party who engaged

in or acquiesced to wrongdoing that intentionally procured the unavailability.

(i)Statements Offered Against the Party who Disappeared the Witness! Bad guys!!6.

HEARSAY EXCEPTIONS - only when declarant is unavailable.D.

That the hearsay statement possess sufficient circumstantial indicia of trustworthiness(i)

The statement is offered on a material fact AND must be more probative as to that fact than any other

evidence which the proponent can reasonably produce (so the interests of justice will be served by its

admission)

(ii)

Notice to the adversary as to the nature of the statement.(iii)

FRE Catch-all exception requires1.

RESIDUAL CATCH-ALL EXCEPTIONE.

Because the use of hearsay evidence in a criminal case might violate the Confrontation Clause, even though it

might fall into the hearsay exception,prior testimonial evidence is inadmissible against a criminaldefendant

1.

CONSTITUTIONAL ISSUESF.



16/17

If the primary purpose of the police interrogation is to enable the police to help in an ongoing

emergency, statements made in the course are non-testimonial. Includes statements made in 911

calls describing circumstances and perpetrator.

(a)

When the primary purpose is to establish or prove past events that are potentially relevant to a

later criminal prosecution, statements are testimonial. Statements can move from non-testimonial

TO testimonial.

(b)

Statements made in the course of police interrogation(i)

Affidavits that summarize the findings are testimonial and can't be admitted into evidence unlessthe technician was unavailable AND the defendant had a prior opportunity to CX!

(a)

Affidavits reporting the results of forensic analysis(ii)

The defendant forfeits right to confront if he disappeared the witness.(iii)

6th amendment violated if physical screen between defendant and alleged child sex abuse victims!(a)

But the right isn't absolute, can testify via a one-way closed circuit TV, that can be okay ONLY IF the

trial judge makes a specific finding of probable trauma to the kid.

(b)

Right tophysically face the witness(iv)

Hearsay rules/other rules of exclusion can't be applied if such application would deprive the accused of

his right to a fair trial/right to compulsory process.

(v)

unless the declarant is unavailable AND the defendant had an opportunity to CX the declarant when the

statement was made.

The party with the burden of PLEADING usually has the burden of PRODUCING evidence sufficient to

make out a prima facie case = create a fact question for the issue for the trier of fact (seems like tosurvive a motion for summary judgment to me)

(i)

Once the party has satisfied that burden, the other side must have enough evidence to rebut.(ii)

Burden of producing evidence1.

Civil cases - usually preponderance of the evidence = more probably true than not true(a)

Some civil cases - clear and convincing evidence = high probability(b)

Criminal cases - beyond a reasonable doubt(c)

After the parties have both sustained their burden of production, the question becomes if the party with

the burden of PERSUASION has satisfied it.

(i)

Burden of persuasion (proof)2.

BURDENS OF PROOFA.

Until rebutted, a presumption operates to shift the burden of production to the other party. A presumption

DOES NOT shift the burden of PERSUASION!

1.

Rebutting a presumption. Happens when the adversary produces some evidence that contradicts the

presumed fact. Then the presumption is dead and has no effect.

2.

Permissible inference = may help the party to meet its burden of production = establish a prima facie

case, but it doesn't SHIFT the burden to the adversary. Ex: res ipsa loquitor, the inference that destroyed

evidence was unfavorable to the spoilor, etc.

(i)

The "presumption of innocence" in criminal cases is really just a permissible inference,(a)

Judge cannot instruct that a jury MUST find a PRESUMED fact against the accused, must instruct

that they may regard the basic facts as sufficient evidence of the presumed fact.

(b)

If a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be

found proved beyond a reasonable doubt.

(c)

Special considerations for true presumptions in the criminal context(ii)

Conclusive presumptions can't be rebutted. Ex: a child under 7 can't commit a crime. These are really

rules of substantive law.

(iii)

Distinguish true presumptions from inferences and substantive law!3.

Every person is presumed to be legitimate (born to married parents I think)(i)When cause of death in dispute in civil cases, presumption that it wasn't suicide.(ii)

Everyone's presumed sane until the contrary is shown.(iii)

If a person is unexplainably absent continuously for seven years, presumed dead.(iv)

Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or the

driver was the owner's agent.

(v)

Everyone's presumed chaste and virtuous!(vi)

Presumed that people acting in an official office are properly performing their duties(vii)

Proof of existence of a condition at a given time raises a presumption that it continued for as long as is

usual for things of that nature

(viii)

A properly addressed and stamped and mailed letter is presumed to have been delivered in the due

course of mail.

(ix)

A person is presumed solvent and every debt is presumed collectable.(x)

Common rebuttable presumptions4.

PRESUMPTIONSB.

PROCEDURAL CONSIDERATIONSVIII.



17/17

When there's proof of delivery of goods in good condition to a bailee and the bailee fails to return them

in same condition, presumption of bailee's negligence.

(xi)

Upon proof of a marriage ceremony, the marriage is presumed valid.(xii)

If presumptions conflict, the judge will apply the one that's more supported by logic and policy

considerations.

(i)

Conflicting Presumptions5.

Under the FRE, state law governs the effect of a presumption concerning a fact that is an element of a

claim/defense to which Erie says the rule of decision must come from the state.

(i)

Choice of Law Regarding Presumptions in Civil Actions6.

Trial judge's primary responsibility is to superintend the trial fairly.(i)

Generally questions of law are for the trial judge to determine and questions of fact are for the jury.(ii)

Allocation of Responsibilities1.

Most of the time existence of a preliminary fact is an essential condition to the admissibility of proferred

evidence.

(i)

Relevancy of the evidence(a)

Ex: facts affecting the competency of evidence; requirements for hearsay exceptions, privileges,

expert testimony, mental competence

(b)

Most STATES hold that rules of evidence DO APPLY in preliminary question determinations!!

Only admissible evidence can be considered!!

(1)

FRE: The trial judge can consider any relevant evidence in making preliminary determinations,

even evidence that wouldn't be admissible at trial itself.

(c)

Whether preliminary questions go to the jury or not are within the trial judge's discretion.(d)

The accused can testify on any preliminary matter subjecting herself to testifying at trial. Does NOT

waive the privilege against self-incrimination.

(e)

In federal court, the judge can comment on the weight of evidence. Most state courts do NOT

allow this.

(f)

The judge can call and question witnesses on her own initiative.(g)

The judge has an obligation to rule promptly on evidentiary objections and if asked must state

grounds for her rulings.

(h)

Judge will restrict evidence to its proper scope and instruct the jury accordingly.(i)

Preliminary facts decided by the judge:(ii)

Ex: whether agency relationship existed, authenticity of a document, witness credibility, personal

knowledge

(a)

Jury decides the competency of evidence.(iii)

Preliminary Determination of Admissibility2.

RELATIONSHIP OF PARTIES, JUDGE, AND JURYC.